Why do we support a duty of candour?

One of the aims of Speak Out Safely is to persuade the government to introduce a statutory duty of candour in the NHS. Shaun Lintern explains why

Hundreds of people were subjected to “appalling and unnecessary suffering” at Mid Staffordshire Foundation Trust during one of the darkest chapters in the history of the NHS.

The reasons why standards fell so low in an NHS hospital are many, varied and complex but one contributing factor was the failure of many staff to raise their concerns.

Instead of shouting as loud as they could many staff turned a blind eye. But this does not mean they did not care. Many were suppressed by what the Mid Staffordshire public inquiry chair Robert Francis QC described as a culture of fear and widespread bullying.

In his final report on the scandal Mr Francis laid out a roadmap for building in protections for frontline NHS staff, in order for to make it safe for them to raise concerns when they see poor practice, negligence or abuse. To help them find their voice.

A key plank of his proposals was a statutory duty of candour, backed by a new criminal offence. However, this remains one of the most misunderstood of Mr Francis’ 290 recommendations.

It is not about forcing individual nurses to admit to patients and families about any mistake they or their team might have made, or making them vulnerable to legal action if they fail to raise concerns.

Instead, the heart of the recommendation is about strengthening the ability of nurses, and all other health professionals, to speak up and, crucially, to have the protection of the law.

In essence Mr Francis was trying to create a true whistleblower’s charter that, unlike current legal protections, staff could rely on immediately and not in a court battle years later.

If the proposals were accepted, frontline staff would be legally required to inform their employer if they believed or suspected an incident caused death or serious harm to a patient.

This might also apply if they observed examples of poor practice that could lead to a death or serious injury. Mr Francis said any information given in this way could not be used as evidence for legal action.

To ensure staff raising concerns would be protected from bullying and threats or harm to their career, Mr Francis recommended that anyone who “knowingly obstructed” another member of staff from complying with their duty to speak up about an incident would be committing a criminal offence.

This is the important bit. It means if you told your manager or another senior colleague about a problem and you suffered as a result – for example from threats or bullying, the person you told could be committing a crime.

Not only would such a duty of candour be a deterrent in itself, it would also give nurses who see an incident something to point to if they came under pressure to stay silent.

Speaking to Nursing Times earlier this year, Mr Francis described the measure as “about as rigorous protection of whistleblowers as you can imagine”.

The Royal College of Nursing and the British Medical Association have said a statutory duty of candour risks exacerbating a culture of fear and that a duty to be open about mistakes already exists under professional codes for both nurses and doctors. While this is true, these duties demonstrably failed to prevent the failings at Mid Staffs.

Too many frontline staff are frightened to speak up, and sadly some think they can bully and threaten others to keep quiet. A culture of fear is bad for staff, it is bad for the NHS and most importantly it is bad for patients.

Creating new laws and new crimes will in themselves not bring about a safer NHS. But their existence on the statute books sends a message and properly applied could give some much needed support to those nurses and other NHS staff who know something went wrong but are too frightened to speak out.

Nursing Times supports creating a new duty of candour backed by a new criminal offence to protect those who speak out on patient safety concerns.

We want nurses who speak up for their patients to be legally protected from bullying and threats. If you do too, sign our petition to persuade the government to introduce a statutory duty of candour.